dissents: I disagree with the majority opinion. In my opinion the judgment of the trial court is palpably and manifestly against the weight of the evidence, and should be reversed.
Plaintiff, Kenneth Kent, hereinafter referred to as “Kent,” and defendant G-eorgia Kent were married November 17,1933. Their only child, William, was born July 31,1934.
On November 9, 1935, Kent obtained a decree of divorce from G-eorgia Kent on the ground of desertion, which decree awarded the custody of the boy to the maternal grandmother, Amy Dietzel. The decree ordered Kent to pay Amy Dietzel $2.50 a week for the support of the boy.
On September 27,1941, Kent filed this petition asking that he be given the custody of the boy, and on a hearing the trial court gave him such custody. G-eorgia Kent, the mother of the boy, has perfected this appeal from such order. Kent has not filed any brief or otherr wise appeared to contest this appeal.
At the time of the filing of the complaint for divorce the boy was in an orphanage. After the divorce decree was entered he continued to remain in an orphanage for about one year, and wa§ then taken by his maternal grandmother to her home, where he remained for about two years. The maternal grandmother then placed him in the home of Mr. and Mrs. Arthur Kremmel, who are not related to any of the parties, where he continued to remain about two and one-half years, and was living at the time of the hearing in the trial court on the petition for custody.
It is important to consider what if any interest and affection toward the boy has been exhibited by his mother and by his father.
The mother is a W. P. A. worker. Mrs. Kremmel testified “The boy’s mother sees him two or three times a week, whenever she is not working. She works every day. ’ ’ The mother testified, ‘ ‘ I have not had the custody directly. I do want the custody because he is mine. I have consented to Mrs. Kremmel adopting the boy only to block this case. I think I am earning enough to take care of him and would be glad to take him to my mother’s or my home. ’ ’
Evidently at the time of the divorce proceeding, although the boy was in an orphanage, Kent did not desire the legal custody of the boy, or was unable to pay for his care in the orphanage or otherwise, for in his complaint for divorce he alleged that the maternal grandmother was a proper person to have such custody, and requested that she be given such custody, and the decree of divorce entered on his motion gave her such custody. As far as the record shows he took no steps, legal or otherwise, to get the custody until the filing of this petition on September 27,1941. On the hearing of such petition he testified “I stayed away from him for five years. I saw him four or five times in five years,” although during such period the boy was only “about sixteen miles away. ’ ’ His only explanation for staying away was, “I stayed away to keep him from being dissatisfied. ’ ’ Before about Easter Sunday, in 1941, he did not visit the boy while the boy was at the Kremmel home, but after such Easter Sunday he visited the boy about a dozen times and took the boy twice to the Kent home with the permission of Mrs. Kremmel. Aside from the formal allegation in his petition that he and his present wife are “willing and anxious to have the custody of said child, ’ ’ the only specific reason alleged in such petition for desiring such custody is,1 ‘ that it works a great hardship on him to maintain William Kenneth Kent in the home of strangers. ’ ’ Although on the present hearing he testified, “I love this boy, ’ ’ he also testified, “It is true that I have made the statement many times that he is not my child. I still love him, but I talk about him that way. ” He was then asked, ‘ ‘ Were you loving him when you were telling people he was not your child?” His reply, and only explanation, was, “Yes, sir, it was one of my ways of keeping him from being kidnapped. ” No evidence of any threatened kidnapping was offered.
Another pertinent inquiry is as to the present ability of Kent to properly care for the boy. Although he was required to pay only $2.50 per week for such care, he is admittedly behind in his payments. His explanation is that for a time he was out of employment. The record does not show how much he is in arrears, but does show that he gave toward such payments a $5 check dated September 7,1941, which check was returned by the bank unpaid with the notation ‘ ‘ Account closed. ’ ’ It will be noted that this check was dated only twenty days before the present petition was filed. Concerning this check, he was asked, “This check with which you made a payment isn’t any good, is it?”, and he replied “That I don’t know. It says ‘account closed.’ When my funds got low I closed my account at the bank to keep from overdrawing and this check was held out until I closed my account. . . . When I closed my account I thought I had $20.00 in the bank. I usually carried about $25.00 in the bank. ... I am willing to take up that check at my first opportunity. . . . My explanation is that Mrs. Dietzel waited too long to put that check in the bank. I closed my account. The bank notified me a check was overdrawn and asked me to come in and make it up. It was not this check. ... So I went and made it up and told them to close my account.”
Kent testified that he now earns $29 a week. He remarried on February 6, 1937, and by such remarriage has a daughter aged seventeen months at the time of the hearing. On the hearing he testified that he and his present wife live “in two rooms.” She testified “My husband and I live in two rooms. One is the kitchen. We eat in the kitchen. The other is a bedroom. We would have room for the other little fellow in our bedroom. He would sleep in the same bedroom with my husband and me and the little girl. He is going on to eight years of age.”
At the time of the hearing the boy had been living in the home of Mr. and Mrs. Kremmel for about two and one-half years. The Kremmels have no child. They have been married eight years, during all of which time they have lived in the same home, which contains three rooms. Mr. Kremmel earns between $54 and $57 every two weeks. They send the boy to grade school. Mrs. Kremmel testified “I personally take him to Sunday School every Sunday. ... I have become very attached to him. ’ ’ She further testified that she had consulted an attorney about adopting the child. Kent testified: “I have visited the boy since he has been at the Kremmel home. It is a good home. They are good church people. They can provide him with a good home. I know they are deeply attached to him.” Mrs. Kremmel further testified that it cost her and her husband about $5 per week to keep the boy; that payments of $2.50 per week have been made to her either by the mother or maternal grandmother, but “I would continue to keep him whether I received that $2.50 per week or not.”
The boy was not called as a witness, probably because of his immaturity. Kent testified that on one occasion, the date not being given, when he had the boy at his home over the week end, when the boy was leaving he cried and asked Kent’s present wife if she wouldn’t ask Kent if there wasn’t some way, if he couldn’t come home. Aside from the competency of this testimony, we all know how easily and frequently a child’s mind is changed by slight favors.
Aside from the comments which I have made, the foregoing is, I believe, a fair statement of all the material evidence.
The primary question for consideration in all cases involving the custody of children is, what is for the best interest of the child? (People v. Schaedel, 340 Ill. 560; Mahon v. People ex rel. Robertson, 218 Ill. 171; Umlauf v. Umlauf, 128 Ill. 378; Hewitt v. Long, 76 Ill. 399.) While it is recognized that a parent is entitled to a preferential right to the custody of his child, this right will be made to yield if the welfare of the child demands it. (People v. Weeks, 228 Ill. App. 262; People v. Nelson, 235 Ill. App. 410.) The rule to be applied in such cases is thus stated by the court in People v. Porter, 23 Ill. App. 196, “In controversies of this character, three matters are to be regarded; the rights of the parent, the rights and interests of the person or persons to-whom the care and custody of the infant child has been given by the parent, and the welfare of the child; and of these three the last mentioned is the matter of primary and paramount importance. The father is prima facie entitled to the custody of his minor child, but he may forfeit the right by misconduct or voluntarily relinquish it. If he, by agreement, surrenders the custody of his child to another, such surrender is not absolute'and irrevocable ; but, if a contention arises in the courts with reference to such relinquishment, much will depend upon the characters and habits of the contending parties, the fact whether the reclamation is sought within a short time or after the lapse of years, and the circumstances of the particular case. All other considerations, however, will be subordinated to the interest and welfare of the child. ’ ’
It is my opinion that the evidence manifestly shows that the interests and welfare of this 8-year-old boy will not be best served by removing him from the admittedly good home of the Kremmels, who are deeply attached to him, and placing him in the home of his father, where it is proposed by the present wife of the father that such boy occupy the one and only bedroom with his father and such wife and their little girl. Although Kent testified that he loves the boy, yet in my opinion his statement that he has many times stated that the boy was not his child, but “I talk about him that way,’’ shows either such a lack of affection or such a lack of character as makes Kent unfit to have the custody of such child. As was said by Justice McAlister in Hewitt v. Long, 76 Ill. 399, “The theory of natural affection which tenderly clings to a child whom a parent has never scarcely seen, and upon whom he has bestowed no care, may do for works of the imagination, but will not, in the absence of proof, be presumed in a judicial investigation.”
I feel that the majority opinion attaches too much importance to the rights of Kent merely as father, and overlooks the more important question of the best interests of the child.